185 P. 454 | Utah | 1919
September 30, 1918, J. M.‘ Thomas commenced an action in the city court of Salt Lake City against C. E. Thornton et al., for the recovery of a money judgment. Said cause was duly
On December 9, 1918, before any findings of fact, conclusions of law, or any judgment had been prepared and signed in said cause, the plaintiff therein filed a notice and undertaking on appeal to the district court for Salt Lake county. Thereafter, January 9, 1919, and before any judgment had been entered in said city court, the respective parties to said' cause stipulated in writing therein as follows:
“It is hereby stipulated by and between the plaintiff and the defendants herein that findings of fact and conclusions of law are hereby waived herein, and the clerk may enter the judgment made by the court without any findings of fact, conclusions of law, or judgment signed by the court and dated nunc pro tunc as of November 26, 1918.”
After the filing of said stipulation in the city court, January 9, 1919, a judgment was reduced to writing pursuant to said stipulation, and entered (as we may assume, although there'is no record before us to so show) in said cause as of date November 26, 1919, and on January 10, 1919, the clerk of said court transmitted the files in said cause to the Third district court for Salt Lake county, whereupon the defendants in said cause moved said district court to dismiss the appeal for want of jurisdiction, upon the ground that the same had been prematurely taken, which motion was denied. It is further made to appear by the affidavit and petition presented to this court on application for a writ of prohibition that said district court now assumes jurisdiction of said cause, and will, unless restrained by order of this court, proceed to try the same.
Upon the showing thus made before this court an alternative writ was issued. The defendants herein filed an answer in which the foregoing facts are admitted. The answer also denies the allegation of the plaintiffs that the district court is without jurisdiction to proceed with said cause, and also affirmatively alleges that the plaintiffs have an adequate, plain, and speedy remedy at law in said district court. It is
As we view the case before us on application for writ of prohibition, there is but one question for us to decide, Is the attempted appeal taken by the plaintiff in said
In the authority last cited, where the decisions from the several state courts, bearing on the question are collated, it is said:
*271 “An appeal under our practice is purely the creature of statute. * * * Whether taken too early or too late, appeals, or attempted appeals, taken otherwise than in the manner or within the time prescribed by the Code, may be said to be abortive. They accomplish nothing. Such an appeal not only does not take the case to the higher court, but it really leaves it undisturbed in the trial court, just as though no attempt had been made to remove it. * * *
The same author, in speaking of the date or time from which an appeal may be taken, further says:
“Prom the statutory provisions it is to be noticed that the time to take an appeal from a judgment begins to run from the actual entry thereof in the judgment book, and from orders, from the date of entry in the minutes, if made in open court. * * * When a judgment has been entered nunc ‘pro tunc as of a prior date, the time to appeal begins to run from the date of the actual entry.” Section 205, and cases cited in note 9.” Comp: Laws Utah, 1917, section 7514; Lukich v. Utah Const. Co., 48 Utah, 453, 160 Pac. 270.
It being an admitted fact that no judgment was actually entered in the city court until January 9, 1919, the notice and undertaking on appeal filed by the defendant
It necessarily follows that the district court has no jurisdiction to proceed with the trial of the case on its merits, nor to do more than dismiss the pretended appeal for want of jurisdiction.
It is therefore ordered that the alternative writ of prohibition heretofore issued by this court be made permanent, and the costs of this proceeding be taxed to the defendant J. M. Thomas.